- The Washington Times - Monday, June 13, 2005

By a 6-3 majority in Gonzales v. Raich (June 6, 2005), the Supreme Court sustained the power of Congress to prohibit the home cultivation and use of marijuana for medicinal use. In dissent, Justice Clarence Thomas maintained the majority had crowned Congress with omnipotence under the Commerce Clause and reduced states to wards of the federal government contrary to the Founding Fathers.

Disputing Thomas, Justices John Paul Stevens and Antonin Scalia, in majority and concurring opinions, respectively, insisted Congress had reasonably concluded a blanket marijuana prohibition was needed to prevent local seepages into a booming (albeit illegal) interstate drug market.

Justices Stevens and Scalia were more persuasive. The constitutional remedy for a blunderbuss congressional antidrug crusade is more speech and statutory amendments, not a manufactured Supreme Court decree.

Article I, section 3 of the Constitution endows Congress with power “To regulate Commerce … among the several States.” Article I, section 8, clause 18 authorizes Congress to enact laws “necessary and proper” to effectuate or vindicate its regulation of interstate commerce. As Chief Justice John Marshall explained in McCulloch v. Maryland (1819), the “Necessary and Proper” Clause does not require strict necessity or indispensability, but only helpfulness in advancing a legitimate constitutional objective: “[W]e think that the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it.”

The Commerce Clause has been regularly brandished to attack moral evils by denying the channels of interstate commerce as means of facilitation. In Hoke v. United States (1913), the court upheld the power of Congress to suppress the white slave trade by making criminal the knowing transportation of a woman or girl in interstate commerce for the purpose of “prostitution or debauchery, or for any other immoral purpose.”

A congressional ban on the use of interstate commerce to conduct lotteries was found irreproachable in the Lottery Case (1903). And Congress used the Commerce Clause to outlaw racial discrimination in any place of public accommodation serving transient guests or purchasing products that moved in interstate commerce in Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964). The Raich litigation similarly stemmed from the longstanding national “war on drugs” launched by President Nixon.

Congress enacted the Controlled Substances Act (CSA) to curtail drug abuse and to suppress illicit trafficking in controlled substances, including marijuana. It was classified as a Schedule I drug because of its high potential for abuse and the lack of any accepted medical use. Accordingly, the manufacture, distribution and possession of marijuana became a federal crime. Home-grown marijuana was proscribed because easily diverted into thriving interstate and international markets, which had surpassed $10 billion by 2000. Congress concluded arresting intrastate marijuana activity would help achieve its national drug abuse objectives.

California quarreled with Congress by passing the Compassionate Use Act of 1996. It made legal under state law possession or cultivation of marijuana for use as medicine upon the written or oral recommendation or approval of a physician. Enforcing the limitation to prevent misuses was problematic. No ceiling or time duration was established for recommended quantities. And the political dynamics of California create a self-evident incentive for state law enforcement officials to blink at prescription abuses or violations.

Two medical marijuana patients receiving treatments under California law but in violation of federal law, Angel Raich and Diane Monson, brought suit challenging the constitutionality of the CSA as applied to their circumstances. They insisted Congress had irrationally concluded that outlawing homegrown marijuana would be helpful to its crusade against interstate drug trafficking. But the facts sang a different tune.

Miss Raich conceded participation in an illicit marijuana market, and Miss Monson voiced a willingness to do so in the future. California’s exemption also provides an economic incentive for physicians to grant their patients permission to use marijuana, which extends to any illness for which the drug is thought therapeutic. In addition, California permits a patient to possess whatever quantity the doctor recommends, and cities and counties may establish even more outlandish limits.

In Oakland and Santa Cruz, for instance, patients may possess up to three pounds of processed marijuana, sufficient to yield approximately 3,000 joints.

California’s exemption for cultivation by patients and caregivers compounded the diversion problem. As Justice Stevens convincingly observed: “The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients’ medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.”

The Raich ruling pivoted on the unalarming and time-honored principle Congress may regulate intrastate activities where reasonably helpful to advancing a legitimate national objective. It does not make Congress a Leviathan in Commerce Clause clothing empowered to regulate every nook and cranny of domestic affairs.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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